Question for the lawyer types

[Aguila Blanca]

http://www.courant.com/politics/hc-guns-restraining-orders-20150130-story.html#page=1

Two years after Connecticut passed one of the nation's toughest gun-control laws, advocates are pushing for a new bill that would allow the removal of guns and ammunition from a person subject to a temporary restraining order, without a hearing by a judge.

Advocates say the proposal is a common-sense measure that would help domestic violence victims at an emotionally volatile time when a restraining order is obtained against their spouse or partner.

But gun rights advocates say the proposal is an overreach that could result in guns taken away without due process.

I'm hearing from "gunny" friends in Connecticut that the governor and his minions, as predicted, are going to be trying to make the most draconian gun laws in the country even worse in this year's session of the legislature. This proposal is one that, in concept, I find very troublesome -- especially since the head of the Governor's Sandy Hook task force has stated outright that their hope is to enact laws that other states will follow.

As I understand it, the way Connecticut law stands today is that firearms don't have to be surrendered until there has been a hearing, and then only if the judge agrees that there's a threat and issues a permanent restraining order (or "protective order" -- I'm not sure if there's actually a difference, or if it's just a question of what each state chooses to call them). Under this new proposal, a person would have to surrender his (or her) firearms immediately upon issuance (by ???) of a temporary restraining order, which might be in effect for up to two weeks before there can be a hearing before a judge.

To me, this concept falls under the same philosophy as "civil asset forfeiture" -- in other words, theft by badge. If keeping and bearing arms is a constitutional right, how can the state rescind that right for up to two weeks without any due process?

Please enlighten me. This "common sense" measure (isn't interesting that, no matter how stupid or unconstitutional these proposals are, they're always "common sense measures"?) could soon be playing in a theater near you.

Advocates have cited the case of Lori Jackson Gellatly of Oxford, a 32-year-old state employee who was shot and killed on May 7, 2014. Her husband, Scott, has been charged with murder and attempted murder in the shootings of his wife and his mother-in-law, despite having three restraining orders filed against him by the two shooting victims and his first wife.

All three women said they feared for their safety, but the restraining orders were not served on Scott Gellatly because he was out of state. His wife was shot with a legally purchased gun, officials said.

...

"Ironically, she was killed on the day she was going to go to court to seek a permanent protective order,'' Blumenthal said. "It certainly would have made a difference if he were barred by law from having firearms.''

I'm sure people from any state can dig up numerous cases where victims have been killed by people who have permanent restraining/protective orders in place against them. For Senator Blumenthal to claim that "It certainly would have made a difference if he were barred by law from having firearms'' is ridiculous. It brings to mind what a former employer used to say: "Everything you see in the news is true -- unless you have first-hand knowledge of the facts." In reality, if an abuser wants to kill the victim, a permanent restraining order is just a piece of paper, and provides only the illusion of protection to the victim.

 

[osbornk]

I think a law this stupid would frequently backfire. The accused would assume the "victim" would know the law and would get a restraining order to take the weapons from him or her. That would make the accused very mad and even more prone to violence. It would also cause them to hide the weapon from the police. If it was not registered, the police would never know and if it was, it would be "lost", "misplaced", "stolen" or some other excuse where it would still be available.

Stupid laws by stupid people.

 

[Frank Ettin]

One thing in the article doesn't compute. Unless there's something strange in Connecticut, a TRO is issued by a judge after some kind of hearing.

 

[thallub]

One thing in the article doesn't compute. Unless there's something strange in Connecticut, a TRO is issued by a judge after some kind of hearing.

It appears that a CT judge can give a TRO without a hearing.

To ask for a restraining order, follow these steps:

1.Fill out these forms. (You can get the forms at any courthouse or at www.jud.ct.gov/webforms/)
•Application for Relief from Abuse (JD-FM-137). This form tells the judge the names, addresses, birth dates, of the people in your case. It also lets you say if the person has guns.
•Affidavit for Relief from Abuse (JD-FM-138). This form tells the judge why you need a restraining order.
•Request for Nondisclosure of Location Information (JD-FM-188). Your contact information will be kept private.

If you have children under 18 and, you are asking the court to order that your children live with you, also fill out:
•Affidavit Concerning Children (JD-FM-164)

2. If you need help filling out the forms, contact:
•Court Clerk’s Office or Court Service Center (at the courthouse),
•Statewide Legal Services (call 800-453-3320), or
•Domestic violence agency (call 888-774-2900).

You must tell the truth on your forms! Also, be aware that the other person will get a copy of your forms (except your contact information).

3.File your completed formsat the Family Court Clerk’s Office at the courthouse that serves the towns where you or the other person live.

4.The clerk will give your forms to a judge. The judge will decide if you will get a temporary restraining order (TRO) right away. A TRO protects you for a maximum of14 days, until your court hearing. If you do not get a TRO or if you want an order to last more than 14 days, you must go to the hearing and tell the judge what you need.

https://search.yahoo.com/search;_yl...ders+in+ct&fr2=sb-top-search&fr=fp-yie11&fp=1

 

[Frank Ettin]

It appears that a CT judge can give a TRO without a hearing....

Thanks. I've learned something about Connecticut procedure.

So it looks like AB and the gun owners of Connecticut indeed have something to be concerned about. Perhaps it would help to note that under federal law a domestic restraining order is disqualifying only if it (18 USC 922(g)(8)(A)):

... was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;....

 

[osbornk]

One thing in the article doesn't compute. Unless there's something strange in Connecticut, a TRO is issued by a judge after some kind of hearing.

Even if there is a hearing, the bar is very low and the Judge issues a TRO very frequently so he can't be blamed. if does happen. Most abuse accusations are a he said-she said because there are frequently no witnesses.

"Wronged" spouses, girlfriends, boyfriends, etc. frequently use a TRO for revenge and to get even with the ones they feel have done them wrong. The revenge would be even sweeter for them if they knew "their enemy" loved guns and they could get them taken away.

 

[Aguila Blanca]

Back to the original question: Does anyone here (especially, but not limited to, the attorneys) agree that requiring a surrender without a hearing is unconstitutional due to lack of due process?

The Fourth Amendment says:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."​

The Fifth Amendment says:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."​

I concede that the issue of a temporary restraining order probably doesn't rise to the level of a "capital, or otherwise infamous crime." However, having personal firearms confiscated is a deprivation of personal property, and if the person subject to the order hasn't had an opportunity to respond in court, he (or she) has not had "due process."

Section 1 of the Fourteenth Amendment pretty much repeats the Fourth Amendment, to make it clear that this also applies to state governments:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."​

I don't see how a mandatory surrender (which is effectively a confiscation) of any private property based solely on an ex parte proceeding can possibly be allowed under the Fourth and Fourteenth amendments.

 

[Frank Ettin]

Back to the original question: Does anyone here (especially, but not limited to, the attorneys) agree that requiring a surrender without a hearing is unconstitutional due to lack of due process?...

It's a good argument, and I think it would be worth pursuing; but like many of these questions, it's impossible to answer categorically or definitively. A lot will depend on the details.

A temporary restraining order (TRO) is intended to be only a temporary measure. It's generally the first step in asking for an injunction. The general standard is that the moving party must show a real likelihood of immediate, irreparable harm. The TRO is then just a stop gap to preserve the status quo until the request for an injunction can be more fully litigated.

So whether or not a denial of due process argument with fly will depend a lot on details like: the procedures, standards and requirements for requesting and granting a TRO; things like whether the TRO automatically expires after a period of time if a full heating on the injunction hasn't been held, and if so, how long; with respect to the surrender of one's guns, whether the law includes safeguards for the protection of one's property upon surrender and return if/when the TRO or injunction is dissolved; etc.

Preliminary, temporary seizure or freezing of assets or property is not unknown in the law. A difference between such extraordinary remedies as when applied in various civil or commercial contexts and as when applied in domestic relationship contexts is that the former are very difficult to get and are available only under especially compelling circumstances.

The Fifth Circuit case, U.S. v. Emerson, 270 F.3d 203 (5th Cir., 2001), might offer some clues as to what an appropriate standard might be with regard to a firearms surrender order in a domestic relations case. There the Fifth Circuit, while agreeing that the Second Amendment protects an individual right, upheld the preliminary injunction requiring surrender by Emerson of his guns finding that the Texas procedure provided acceptable due process for a preliminary order. However, the Texas procedure did involve a hearing.

 

[speedrrracer]

Back to the original question: Does anyone here (especially, but not limited to, the attorneys) agree that requiring a surrender without a hearing is unconstitutional due to lack of due process?

Well, we know the Obama administration does not agree. Remember when Obama, et al assassinated that American in the Middle East who was a radicalized Islamic type?

There was some hue-and-cry about lack of due process, and the talk then was, "Well, what are the limits of what can possibly constitute 'due process'?"
IIRC, the Obama administration argued that they had a meeting with lots of very high-ranking officials, perhaps including many legal types, and they decided, as a group, to assassinate this American. Therefore, it was argued, he received due process, it just wasn't the kind of due process most of us expect.

So if the Obama administration is correct, and due process can take many forms, then couldn't this CT thing also give due process, just not the "normal" due process?

Personally, I think Frank's post above will prove to be the winner -- maybe the Texas process (whatever it was) will be something that CT will be required to uphold (if they don't already), but a full-fledged courtroom drama probably won't be required.

 

[44 AMP]

due process can take many forms,

The Constitution spells out that we cannot be deprived of life, liberty, or property without due process.

the law states what due process is, in certain cases. In other matters, it is left to the judgement of the administration.

For the King, "because I'm king and I say so" is sufficient due process.

When you have a good king, that works tolerably well. When you don't, not so much....

 

[JimDandy]

Actually it's left up to the judgement of the courts.

Neither the courts nor the law require a LEO being shot at to call a judge up, and have a hearing over the phone, then pass the phone over to the guy shooting at him so he can have his say.

But shooting a skinny kid running away from a house in a high burglary area, not so much.

 

[tyme]

The Fifth Circuit case, U.S. v. Emerson, 270 F.3d 203 (5th Cir., 2001), might offer some clues as to what an appropriate standard might be with regard to a firearms surrender order in a domestic relations case. There the Fifth Circuit, while agreeing that the Second Amendment protects an individual right, upheld the preliminary injunction requiring surrender by Emerson of his guns finding that the Texas procedure provided acceptable due process for a preliminary order. However, the Texas procedure did involve a hearing.

What other kinds of property are taken away, while the owner stays free, on the basis that the property might be used to harm others? Kitchen knives? Golf clubs? Baseball bats? Cars?

(Note the motive: preemptive (attempted) prevention of harm. This is different from confiscation for evidentiary purposes, or passport confiscation to discourage a suspect from fleeing the country, both of which I can understand.)

Cars aren't even taken away from habitual drunk drivers, are they? They'll suspend your license, and I suppose they could even invalidate your vehicle registration. But the car remains yours, doesn't it?

 

[Frank Ettin]

What other kinds of property are taken away, while the owner stays free, on the basis that the property might be used to harm others? Kitchen knives? Golf clubs? Baseball bats? Cars?...

Anyone in that unfortunate situation is welcome to raise that point in court. Or folks can raise that with their legislative representatives, both at the state and federal level, to argue for a change in the law.

With regard to a judicial challenge, based on Emerson and also the recent Sixth Circuit case of Tyler v. Hillsdale County Sheriff's Department (Sixth Circuit, No. 13-1876, 2014) it looks like the approach most likely to be effective would be an argument for setting a very high due process bar based on the argument that the right to keep and bears arms is a fundamental right protected by the Second Amendment.

With regard to the political argument, I doubt that we would have sufficient political support to get much of a change. But some high due process bar might get somewhere. Indeed a bill has been introduced in California (AB 225) to provide for sanctions if a gun violence restraining order is applied for without solid grounds.

 

[WW2]

It is already the law in California

Unfortunately this is the law in California.

It is a misdemeanor to file a false report to get someone's guns taken away. Fortunately, one of our California representatives has submitted a bill to make it a felony to file a false report that results in taking away guns.

 

[62coltnavy]

WW2 you are mixing up two different kinds of orders, one is a domestic violence restraining order and the other is a "gun violence restraining order."

Domestic violence orders have been around for years. The TRO is issued on an affidavit, but a preliminary or final order is issued only after notice and hearing. These are very common in domestic relations practice, and carry criminal penalties if violated. They usually are accompanied by stay away orders, do not contact orders, etc.

More recently, California enacted a statute allowing for removal of firearms from persons who presents an immediate risk of harm to himself or others. These can only be issued after a hearing in which evidence, or affidavits, are considered by the judge, but may be issued ex parte, i.e., without notice to the affected party. The petition for an order can be submitted only by a close family member (defined by statute) or the police. They are only good for three weeks, during which there is notice to the affected party and a mini trial on the merits. The prohibition lasts for no more than one year. In many ways, these are similar to mental health holds (Welfare & Institutions Code section 5150). At this point, it is unlikely that these orders will trigger a federal lifetime prohibition. Currently, the penalty for filing a false affidavit in support of such an order is a misdemeanor, with a pending proposal to make it (perjury) a felony. THIS LAW HAS NOT YET GONE INTO EFFECT. IT BECOMES OPERATIVE JANUARY 1, 2016.